Filed 7/12/17 Mora v. Williams CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----


BENJAMIN MORA, as Trustee, etc.,

Plaintiff and Appellant,

v.

MARK L. WILLIAMS et al.,

Defendants and Respondents.
C080581

(Super. Ct. No. 177609)








Plaintiff Trust sought to establish an equitable easement to use a private dirt-and-gravel road commonly known as Hendrika Way in order to access its adjoining 35-acre
parcel of undeveloped land. The trial court entered judgment in favor of defendants.
On appeal, the Trust contends the trial court incorrectly concluded that the parcel at issue is not landlocked; and, presuming that we agree with that proposition, that the court abused its discretion in declining to award an equitable easement and in finding that irreparable harm would result if it did. Finally, the Trust argues the court erred in finding that the first 400 feet of Hendrika Way was never dedicated to public use. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
At the outset of trial, the Trust abandoned any other legal theory for establishing an easement. Our factual focus is thus on criteria for imposing an equitable easement. We view the evidence in favor of the judgment. (Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 267 (Linthicum).) As the Trust acknowledges, however, the facts are essentially undisputed.
Although the Trust describes at length the history of title of the properties at issue, all we need note is that at one point there was a square 40-acre parcel held by a single owner, who constructed a home in the southwest corner of the 40-acre parcel around 1960 and later deeded the five acres surrounding the home to his wife, without reserving any access across the five acres to the larger parcel, which remains undeveloped to this day. Eventually, Jeff and Marsha Mora acquired both properties in 1989. In 2009, Jeff Mora transferred the 35-acre parcel to the Trust (of which his late father was then the beneficiary; at present, Benjamin Mora, Jeff and Marsha’s son, is the sole beneficiary) without reserving any access across the smaller parcel for the benefit of the deeded property. The Moras never granted any easement for the benefit of the larger parcel during the subsequent years in which they held title to the smaller parcel, before allowing the smaller parcel to lapse into foreclosure with a pending sale date at the time of trial in late 2014.
To the north of the Trust’s property, the defendants (and other nonparties) have eight contiguous properties running west to east. All of the defendant property owners granted a 60-foot easement along the southern edge of their properties for their common use as a private road (Hendrika Way), which they describe as a glorified driveway, to access Old Oregon Trail to the east. These property owners are parties to a road maintenance agreement. The Hendrika Way easement does not encroach the Trust’s property at any point. The four westernmost properties border the north boundary of the Trust’s property; the easternmost property, fronting Old Oregon Trail, is currently owned by a church; and three other properties lie in between.
Hendrika Way is roughly paved for its first 400 feet as it passes through the church’s property (which has offered to dedicate it for public access), and is thereafter gravel atop dirt until it ends at the gated driveway for the westernmost property. The Trust property has never had a deeded access to Hendrika Way (although the Moras claimed that their realtor told them in 1989 that they could use it to access the larger parcel). At most, the Moras rarely used Hendrika Way to recover stray cattle, access their water meter, and repair the northern fences of the Trust property; there have not been cattle on the Mora property since 2001. There are no physical signs of a well-traveled connection between the Trust property and Hendrika Way. When the Moras attempted to install a gate that would allow vehicular access from the Trust property to Hendrika Way (as opposed to their cattle gates), one of the defendants blocked it. In the 20-odd years from the acquisition of the properties in 1989, the Moras never investigated whether the Trust property was landlocked.
Between the five-acre property and Highway 299 is another property (the Beebe parcel), purchased in 1974, through which runs a road from Highway 299 to the five-acre parcel called Twin Tower Drive. This has been the historic access to the five-acre parcel (accessed a ways north of Highway 299 via Hollow Lane from a subdivision to the west), across which was then access to the Trust property. Testimony and aerial maps also showed a road in the subdivision (Carnegie Road) connected with Twin Tower Drive north of Hollow Lane via a gravel road, which the plans indicate is intended to connect with Twin Tower Drive in the future. While the Trust asserted that a seasonal creek entering the larger parcel at nine o’clock and exiting at six o’clock inhibited access to its parcel from the smaller parcel, the Trust did not demonstrate that this seasonal creek was insurmountable, and a proposed subdivision plan for 55 parcels filed by the Moras (and renewed as recently as 2014) did not show any need for culverts. The Moras accessed the larger parcel with dirt bikes or ATV’s by trails. The Beebe parcel has posted signs that prohibit trespassing; while the owner of the Beebe parcel has manifested displeasure about the use of the road, he has never brought any legal action to stop the use by owners of the five-acre and Trust parcels. The Trust did not present any evidence that extension of Carnegie Road would impose a hardship greatly disproportionate to the Trust’s use of Hendrika Way. The defense expert noted that aerial photos show that Twin Tower Drive was the sole access to the house on the smaller parcel dating back to its construction, and therefore a good argument could be made in favor of a prescriptive easement along it.
At trial, the Trust represented that it wanted access to its 35-acre property for the benefit of two homes. In connection with their application for the subdivision, the Moras dedicated a right-of-way along the western end of the two parcels to connect with Twin Tower Drive and then a road called Shasta View Drive across Highway 299 to provide access. (There was evidence that the City of Redding was planning a realignment of the extension of Shasta View Drive to the north, which might result in abandoning the dedicated right-of-way from the Moras.) The Trust’s expert noted an ordinance that prohibited primary access to a subdivision via a private road, and that was the impression of one of the defendants after being present at a hearing on the renewal of the subdivision permit. The Trust was also willing to limit its access to Hendrika Way to benefit no more than two homes.
The various defendants testified that privacy was an important consideration in buying their properties, and a rural feel that was still convenient to downtown Redding. They did not want to share this with more than the people living there. Any increase in the road’s use would aggravate dust and maintenance problems. An increase in traffic would interfere with their use of the roadway for horseback riding, children’s play, and roaming domestic animals. It also offended one defendant that the Trust was seeking something belonging to someone else to which it was not entitled. Another defendant noted that he would not feel comfortable giving access to Jeff Mora, who had behaved in a threatening manner toward him in the past.
The trial court concluded that the Trust had failed to prove that alternative access to the south or west was impossible or represented a greatly disproportionate hardship in contrast with imposing an unwanted easement on defendants in favor of the Trust. It also found the complete absence of any routine encroachment by the Trust on the property of defendants without their assent. As a result, the proposed easement was a willful imposition on defendants, asserting a use that did not have any historical basis, and which resulted solely from the failure of the Moras to establish access to the Trust property. Defendants had mutually sought a private setting with minimal use of Hendrika Way, shared only amongst themselves. Granting access to the Trust would result in an increased need for maintenance, and generate more dust and traffic. The hardship to the Trust was simply depriving it of a more convenient means of access. It was not unreasonable for the Trust to bear the cost of establishing access through other reasonable means, as opposed to depriving defendants of their property rights.
DISCUSSION
1.0 Governing Legal Criteria
“In appropriate cases in which the requirements for traditional easements are not present, California courts have exercised their equity powers to [grant an] interest[] in land belonging to another, sometimes referring to such an interest as an ‘equitable easement.’ [Citations.] Most of these cases involve [seeking an injunction against] a defendant[’s] . . . physical encroachments located on the property of [a] plaintiff.” (Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1008 (Tashakori).) However, “ ‘in a proper case, the courts may exercise their equity power to . . . fashion an interest [affirmatively] in [an] owner’s land [that] will [allow] [a plaintiff] encroacher’s use.’ ” (Id. at p. 1009.)
The trial court must consider three factors. First, the encroachment cannot be willful or the result of the encroaching party’s gross negligence (in connection with which a trial court should consider whether the encroaching party is responsible for the situation). Second, if the rights of the public are not otherwise affected, the easement should be denied regardless of any lesser injury to the party seeking it, if the opponent would experience greatly disproportionate hardship from its grant, because the imposition of an easement is akin to exercising the power of eminent domain in favor of a private party. Third, a trial court then balances the relative hardships of the parties in establishing or denying an equitable easement, with the party seeking the easement having the burden of proving a hardship from a denial of the easement that is greatly disproportionate to the lesser hardship from granting the easement. We review the trial court’s determination of the issue for abuse of discretion; if the court has any doubts about the proper course of action, it should favor a denial of an easement because the party seeking it comes into court as the wrongdoer. (Fairrington v. Dyke Water Co. (1958) 50 Cal.2d 198, 200; Tashakori, supra, 196 Cal.App.4th at pp. 1008-1009; Linthicum, supra, 175 Cal.App.4th at pp. 265, 266-267; Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 758-761, 764.)
2.0 The Landlocked Status of the Trust Property Is not Determinative
The Trust argues that the trial court should not have found that there was potential alternative access to the Trust property from the south and west to the smaller parcel, and then through the smaller parcel to the Trust property. But the status of the Trust property as landlocked or not is not determinative in itself of whether the Trust has satisfied the criteria for an equitable easement.
It is true that the Trust does not have any adjudicated access. The evidence at trial nonetheless established physical access that could potentially ripen into legal access if the Trust had ever explored these possibilities. The Trust never presented any evidence why it would be impossible or greatly disproportionate to establish access through the Beebe parcel from the south or west—its traditional access—rather than impose a new use on defendants. The Trust did not present any evidence to explain why an easement across the smaller property was not reserved at the time of the conveyance of the property to the Trust, or why the dedicated easement along the west line could not be a basis for access through the smaller property. Therefore, on this record, it was not an abuse of discretion for the trial court to find that the proposed encroachment of defendants’ property rights was a willful imposition of a new use that was the result of failing to ensure access to the Trust property over the years that the Moras and the Trust have owned the two parcels, the burden of which should not be on defendants to remedy. In concluding that the Trust must make some effort to establish alternative access before seeking to make defendants bear the burden of the allegedly landlocked status of the property, the trial court did not abuse its discretion in not finding this a grossly disproportionate burden on the Trust absent any evidence that pursuing the alternative access was simply less convenient.
3.0 The Evidence Supports a Finding for Defendants in Balancing Harms
The Trust argues that more was required to establish the quantum of harm to defendants from dust, increased maintenance, loss of privacy, and interference with use, especially because defendants’ fear of increased use consistent with the plans for a 55 unit subdivision on the Trust property did not have any basis in fact, given the restrictions on the tentative map. We disagree.
The point of the trial court’s conclusion is that defendants, through no fault of their own, would be forced to accept an unacceptable change in the character of the neighborhood that they mutually agreed to share, regardless of whether it would be only an increment of one or two homes as the Trust was willing to stipulate. A number of defendants testified that they did not think any increase in dust and maintenance problems would be acceptable beyond what they presently tolerated. The easement in addition would require them to accept into their circle strangers with whom they do not wish to share it. Finding this less acceptable than forcing the Trust at least initially to pursue other options was not an abuse of discretion.
4.0 The Issue Regarding Public Dedication of the First 400 Feet of Hendrika Way Is Deemed Abandoned
The parties dispute whether the church’s offer to dedicate its portion of Hendrika Way for public use was or was not accepted, and whether this does or does not allow members of the public to traverse it. It is not explained anywhere why, in the absence of an equitable easement across the remainder of Hendrika Way to the north end of the Trust property (which lies three parcels beyond the end of this possibly dedicated roadway), the possible public nature of these 400 feet has any materiality to the judgment. As a result, we deem this abstract point forfeited for insufficient argument establishing prejudice. (Imagistics Internat., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 591, fn. 8, 593; Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.)

DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)



BUTZ , Acting P. J.



We concur:



MAURO , J.



DUARTE , J.